Q. Will I be charged a fee for contacting the office or for my initial meeting with an attorney?
A. In most instances, especially in the circumstances of a personal injury claim, there will be no initial consultation fee. In fact, most personal injury claims will be handled on a "contingent fee basis" which means that a portion, (usually 1/3), of your award or settlement collected, will be paid to the Firm for the representation and handling of your case. If there will be a fee for the initial interview, you will be informed prior to your first visit.
Q. What types of cases does the Firm handle?
A. With regard to personal injuries, the Firm has experience with dog bite cases, automobile collisions, premises liability, construction site accidents, products liability, slips and falls, and medical malpractice. Additionally, in order to provide a complete range of services to our clientele, the Firm remains current in many other areas of civil practice and litigation including Negligence, Divorce, Child Custody, Bankruptcy, Wills, Estates, Business and Incorporations, and Real Estate.
Q. What is my personal injury case worth?
A. Hours of research and examination by the Firm, and perhaps by experts outside of the Firm, will be required before a final evaluation of the total damages in your personal injury case can be completed. The client's responsibility will be to get well while the Firm submits your medical bills to the proper insurance carriers for payment, and negotiates a property settlement for your damaged vehicle and/or other lost property, and collects all of the available information concerning your injuries and related damages. When the evaluation is completed, usually after the client has reached a medical end-result, demand for settlement is made and the person(s) who caused the client's injuries and his/her insurance company are given an opportunity to settle the claims short of time-consuming and expensive litigation. If the matter cannot be settled timely, a lawsuit is usually filed and the matter is turned over to a Judge or Jury for determination after trial.
Q. How will I pay the Firm for its representation of me and what is a contingent fee?
A. "Contingent Fee" refers to the financial arrangements agreed upon by the Firm and its client for payment to the Firm for services rendered. In most cases personal injury claims are handled on a 1/3 contingent fee basis which means that the Firm will retain as payment for its services rendered to the client, 1/3 of the total amounts collected for the client from the individual(s) who caused the client's injuries or from their insurance company. Each personal injury claim has its own particulars and the issue of payment for legal services rendered will be discussed with each client in the initial attorney-client meeting. Out-of-pocket expenses incurred by the Firm on behalf of the client will continue to be the responsibility of the client, even if no money is received from the party who caused the injuries.
Q. How long will it take to resolve my personal injury case?
A. Each case is different and special to the particular client and circumstances. Commonly the determining factor in resolving a personal injury case is the time it takes for the client to reach a medical end-result. It is difficult to evaluate a case and advise the client of the value of his/her losses until such time as the client has reached a point in his/her medical treatment where the experts can advise the Firm as to the full extent of any permanent loss of function experienced by the client and the cost of any likely future medical treatment. Some cases settle more quickly than others. However, personal injury cases can take from a couple of months to years to settle or to complete the trial process. This Firm takes great satisfaction in keeping the client informed at all phases of representation until the case reaches a final resolution.
Q. In Massachusetts what is it that a Claimant has to prove to be successful on a claim?
In Massachusetts, to be successful in a claim, personal injury Claimants must show two things: someone else was at fault for the incident that caused the Claimant’s injury, (more than 50% at fault) and that fault was the cause of the Claimant’s damages, which include but may not be limited to: pain and suffering, mental anguish, unreimbursed medical expenses, unpaid lost wages, permanent injuries, scarring and periods of disability, (partial or total). The “burden of proof” that someone else, (the “tortfeasor”), caused your personal injuries lies with you as the Claimant and with your attorney. Together with your attorney, whether you settle the case or proceed to have a third party resolve your case, you will have to prove that the tortfeasor caused your injuries and that your injuries and other damages are directly related to the incident involving the tortfeasor.
Q. How will my personal injury claim proceed?
In most personal injury cases, the Claimant’s job is to recover his/her health and keep the attorney apprised of treatments, bills and the extent to which the Claimant has recovered from the injuries. My office will retrieve all of the medical bills and records from your hospitals and treating physicians. Once you have reached a medical end result, which means you have fully recovered or have recovered as much as you are going to, (you may have permanent injuries), I will review and evaluate your damages and make a written demand for settlement from the insurer who represents the tortfeasor who caused your damages. 30-60 days after providing the insurance company with all of the records and a complete demand package I expect settlement negotiations to begin. Some cases will settle and you will receive compensation for your losses, and some will need further action such as mediation, arbitration or litigation to force the insurance company to pay for your losses. Most cases settle, but not every one. Attorneys and adjusters may see your case differently, requiring a third party to evaluate your claim and determine both liability and damages. All offers from the insurance company are relayed to you with a recommendation on whether to settle or proceed with further negotiations or file an action.
After you and the Attorney have met for the initial consultation, both will decide whether or not to proceed. Assuming that both parties desire to enter into representation and proceed with the personal injury claim, Counsel will provide documents for the Claimant to review and execute. Among the documents typically requested for execution are the Contingent Fee Agreement, Authorizations to Release Medical Records/Billings and Authorizations to Release Employment Records. The Contingent Fee Agreement contains the terms and conditions upon which Counsel will represent you as a client, the services to be provided to you and the fees and costs you will pay for services rendered. Medical and employment authorizations will be used to obtain necessary medical records, billing, diagnostic testing and lost wage information.
Q. Should I continue to treat and visit with my doctors after contacting the Attorney?
Do not be the “brave soldier” and live with your pain. You have no idea what is wrong with your body until doctors make a diagnosis. Doctors know the best way for you to recover and will instruct you on ongoing care. Your failure to follow directions may mean a longer recovery time or an incomplete recovery for which you will not be credited when your case is evaluated by an insurance adjuster. While there is insurance to cover your medical expenses, or to reimburse you from the third party tortfeasor who caused your injuries, it is time to treat and discover all of your related injuries rather than realize them years after the insurance is no longer available to you and your claim has been lost to the statute of limitations. If you fail to treat, we may be missing valuable medical expenses which are used to determine your overall losses, the value of your claim and the sums that an adjuster may be willing to pay to settle your claim. You may have to remain out of work for some period of time as well. Frequently we can get you reimbursed for your lost wages. Your time out of work is evidence of the extent of your injuries. Follow your doctor’s orders.
Q. Do I need to continue to contact the Attorney after I have retained his services?
The Attorney needs to know each new hospital, procedure, therapist, doctor and chiropractor with whom you treat and each form of treatment you are receiving. Do not assume that the Attorney will discover a referral to a new treatment or a new provider buried somewhere in your records. If you are treating, make sure the Attorney’s office knows where and for what and while you are informing the Office, let them know how you are feeling and any restrictions (whether from a doctor’s note or just an inability to perform certain tasks due to your pain). You can reach the Office by phone during business hours, by voicemail after hours, by fax or by e-mail at any time.
Q. While the claim is pending or even before I visit with the Attorney for the first time, what should I be doing?
It is imperative that you and your Attorney fully document your losses from the outset of your claim. Take photos of your injuries, the site of the incident giving rise to your claim and the vehicles involved, if a collision has occurred. Provide these documents to Counsel electronically or deliver them to the Office and the Attorney will copy them for you. Photos of the vehicles involved or the site of a slip and fall incident or construction site accident will be invaluable during demand and litigation. If there are witnesses, write down their names and addresses and if they will make a brief note of what they observed, this can support and bolster your claim for damages. Where applicable, photos of your injuries should be taken over time and the dates noted, so that you and your Attorney may prove the progress of recovery.
Q. Is it OK for me to discuss my case and my injuries with friends, relatives and at work?
Do not discuss your case with friends or general relatives or co-employees. They may be asked to testify about your conversations. Everything you say, other than to your doctor and lawyer, is fair game for discovery by the tortfeasor. Be very careful about what you say and where you say it. You will likely be asked to testify at a deposition about what you said to whom and when, regarding your injuries and the incident and there is no legal way to keep this evidence from being discovered.
Q. How should I handle my Doctor visits?
Be honest with your doctors. Remember, frequently what you tell your doctor will become part of your permanent medical record. If you are hurting, make certain that the doctor is aware. Do not exaggerate your pain but be clear about it. When the doctor asks how you are doing, do not say “fine” unless you mean it. Insurance adjusters who hold the purse strings to a potential settlement of your case will sift through your medical records with a fine-tooth comb to find admissions you have made. Be courteous to your doctors. Show up on time. Be patient. Doctors may observe you when you least expect it and such observations may become part of your medical record. Do not walk out in the middle of an examination or treatment. Such action will appear in your permanent record and can adversely affect your claim.
Q. Will the insurance company send a private investigator to watch me?
For some high-end tort cases, insurers may hire a private investigator to follow you around. If you are painting the house, washing your car, playing ball with the kids or carrying groceries, they could obtain photos which will contradict your statements about pain and restrictions. If you have restrictions, follow them. If you are in pain, do not pretend that you are not. And if there is an investigator following you, understand that it is part of the litigation. Do not confront the PI.
Q. What if the insurance adjuster for the other party calls me on the phone?
Do not speak with adjusters who represent the other party (tortfeasor). Frequently adjusters will try to contact Claimants before they can hire Counsel to advise them. Your statements will be recorded for use against you at a later date. Dodge the adjuster until you have met with Counsel. You may cooperate with the insurer but only in a controlled environment with your attorney by your side after receiving instructions on how to approach a statement. You must however, fully cooperate with the adjuster for your car insurance company.
Q. How does Personal Injury Protection or “PIP” benefits on my own insurance policy work?
Personal Injury Protection or PIP is a no-fault claim against your own insurance company, under your policy of automobile insurance, (or against the driver’s insurance policy of the car you were traveling in as a passenger, even if your driver was not at fault or against the driver in the case of a pedestrian-vehicle collision). A PIP claim provides reimbursement for medical expenses and lost wages. PIP will pay the first $2,000.00 of medical expenses directly related to the injuries you sustained in the collision. You should forward all of the initial medical expenses to the PIP carrier for processing before asking your health insurer to make any payments; (you will be given a PIP claim number by the PIP carrier which you will provide to anyone that treats you for the injuries you sustained in the collision giving rise to your claim). If you have health insurance, it must kick in after the first $2,000.00 of PIP medical payments. If your health insurance requires you to pay a deductible or a co-pay, you should pay it (please deliver any and all receipts to my office) and then PIP will reimburse you for those and most other medical expenses that are not otherwise covered by your health insurance, up to a grand total of $8,000.00. PIP will pay 75% of the documented average lost gross wages where your injuries have kept you out of work with a doctor’s note. The total cap for lost wages plus medical expenses is $8,000.00. The tortfeasor’s insurance company will be responsible for reimbursing your insurer, behind the scenes, for PIP expenses paid. PIP will not pay until bills have been submitted along with related medical records. You must cooperate with your PIP adjuster or payments will be delayed or denied. PIP adjusters have the right to obtain a written release from you and obtain your medical records and billings directly in order to evaluate your claim and the extent to which your medical bills are appropriate to pay. Your health insurer will retain a contractual right to be reimbursed if you receive compensation for medical expenses from a third party. This will factor into any settlement negotiations. Medicare and Medicaid may also make medical payments on your behalf and these are subject to reimbursement from any settlement you reach or any award you may receive for damages. In the event that you go to arbitration or a trial, there will be an “automatic offset” from your award to reimburse PIP for all expenses paid on your behalf. If you settle the case, PIP will be paid over and above your settlement amount.
Q. What are my rights to get my automobile repaired or replaced if the other driver caused the collision?
If your car is damaged in a collision and if the other driver is at fault, you have the right to have your car repaired, (unless the damages and repair costs are greater than the book value of your vehicle). Your claim may be made against the insurance company for the driver who is at fault for your damages. You must prove to the other driver’s insurance company that their insured is at fault. If you were rear-ended, fault is usually clear and liability is accepted by the insurer. However, intersection and open road collisions are not always clear on the issue of liability. The police report may be very helpful in determining liability, especially if one driver is cited.
Frequently a Claimant’s vehicle may be covered by his/her own “collision” insurance and there may be a typical deductible of $500.00 or $1,000.00. Your insurance company may pay for your vehicle to be repaired and if liability of the other driver is clear, your insurance company may waive your payment of the deductible (meaning no out-of-pocket expenses for you) and then get reimbursed behind the scenes from the other driver’s insurer.
If you proceed against the other driver for your property damage claim, you have the right to obtain a rental vehicle, as needed transportation at the cost of the tortfeasor’s insurance company. Your rental must be similar in size to your vehicle. You may keep the rental until your car is repaired or until you are paid the fair market value of the vehicle, if it is considered “totaled”, at which time you must promptly return the rental vehicle.
Q. What are my claims for compensation against the other driver who caused the collision and caused me pain and suffering?
This is the personal injury claim and is based upon the fault of the other driver. What you can expect the tortfeasor’s insurance company to pay will be capped by the policy limit held by the tortfeasor. The tortfeasor may be liable to you beyond the policy limit, but the insurance company will only pay up to the policy limit. In order to maintain a personal injury claim as the result of an automobile collision, the Massachusetts statutes require that a Claimant sustain at least $2,000.00 in medical expenses directly related to injuries suffered in the collision or have permanent scarring or have a fractured bone. Otherwise, the BI claim is barred by statute.
Occasionally, it is a friend or loved one who has been negligent and who has caused the collision in which you have been injured. Keep in mind that if fault is clear, the insurer has the obligation to pay claims for the fair market value of the losses you have experienced, regardless of any relationship between you and the tortfeasor. Making a claim for damages is not the same as committing to filing a lawsuit against the friend or loved one, who undoubtedly would want you to be made whole and reimbursed for all of your losses and pain and suffering. This is why your friend or loved one purchased an insurance policy in the first place. If they are negligent and hurt someone, they would want that person to be properly compensated for their losses.
Q. How do medical malpractice claims against doctors or hospitals work?
A medical malpractice claim arises when a doctor or healthcare professional has done something he/she was not supposed to do or has failed to do something that he/she was supposed to do and such action or inaction was the direct cause of your injuries and related damages. This is called “a breach of protocol”. If a healthcare professional breaches the protocol and if, as a direct result of such breach, you sustain additional medical expenses, prolonged pain and suffering, further injury, mental anguish and/or other related damages, you may have a claim for medical malpractice.
In Massachusetts, a Claimant’s attorney in a medical malpractice case must present an Offer of Proof to a Medical Malpractice Tribunal, consisting of a judge, a lawyer and a doctor practicing in the area of medicine in which the doctor (tortfeasor) practiced at the time of causing your injury. It is the burden of the Claimant to persuade two of the three tribunal members that the case has merit. Meritorious cases then proceed to litigation. Cases in which two-thirds or all of the tribunal members hold for the doctor and against the Claimant, require a $2,000.00 cash bond to be posted for each healthcare professional alleged to be a tortfeasor, before the litigation can proceed and such funds may be applied to the tortfeasor’s costs of litigation, if the litigation is not successful for the Claimant. Massachusetts significantly protects its healthcare professionals more than all other types of tortfeasors.
In Massachusetts, the causal connection between the breach of protocol by a healthcare professional and a Claimant’s damages cannot be made by common sense alone. Furthermore, it typically cannot be proven at trial that a healthcare professional has breached his or her protocol, by applying simple logic. Again, Massachusetts law significantly protects its healthcare professionals by requiring a Claimant to obtain an expert opinion indicating to a reasonable degree of medical certainty that there has been a breach of the protocol and that such breach has led directly to the damages of the Claimant. Experts must be chosen wisely and will be paid handsomely to review the records and provide an opinion regarding whether there was a breach of protocol and whether such breach is causally related to the damages claimed. Costs of the expert are borne by the Claimant, whether the expert’s opinion is favorable or not and whether the results obtained by Counsel at trial or arbitration are favorable for the Claimant or not.
Medical malpractice cases require extensive time and effort in litigation by both the Claimant and the Attorney over several years before resolution can be reached and as such, medical malpractice cases are not taken on lightly.
Q. What are my alternatives if the insurance company will not settle my claim?
Sometimes, but not always, adjusters and attorneys vary greatly on their assessment of a Claimant’s damages or a tortfeasor’s liability. If the evaluations are too far apart, the settlement process will breakdown, leaving the Claimant to accept a low-ball offer (if at all) and walk away from the claim entirely or otherwise pursue one of three other means of resolution: mediation, arbitration or litigation.
Mediation: The parties could both agree upon a third party mediator to listen to both sides and try to get the insurance company to offer more money, working toward a reasonable resolution, and try to get the Claimant to compromise the demand to a lower number. This is the process of mediation. It is non-binding, so if anyone is unhappy with the results, then the process is ended without resolution. The Mediator is paid by both parties and mediation usually lasts for one-half to one full day. If the parties are successful, the case is ended and the Claimant is paid for his/her losses. If the process ends unsuccessfully then the Claimant must consider other options for resolution.
Arbitration: Again, like mediation, to present a personal injury case for arbitration requires both parties to agree. Most of the time the arbitration process is binding and the parties cannot change the results. The parties will agree upon an Arbitrator, usually an attorney or a retired judge, who will listen as the parties put on a mini-trial. Within 21 days after the arbitration hearing, the written results and an award, (if any), will be sent to Counsel. The Arbitrator will decide both the liability of the tortfeasor, if at all, and the extent of the damages sustained by the Claimant. If the Claimant wins on both the issue of liability and damages, then the tortfeasor’s insurance will pay the arbitration award up to the policy limits or up to whatever other limit to which the parties may have agreed prior to arbitration.
Litigation: Litigation is the process of filing a Complaint in the District or Superior Court and proceeding through court where a judge, or more often a jury, will decide the issues of liability and damages. This process can take from one year to five years or more in complex medical malpractice cases. Litigation is appealable and so an award after a trial may not be final, if either party believes that the judge presiding over the trial made a mistake regarding evidence during trial or misspoke while giving instructions to the jury after the evidence has been closed. The process of litigation is time-consuming and requires a significant amount of effort from the Claimant and Counsel. There may be several depositions in which the Claimant or some other witness is sworn in and asked a series of questions by one of the attorneys in front of a stenographer and a transcript is created for the attorneys to use at and before trial. Winning at trial is dependent upon many factors, some of which are outside of the control of Counsel and so all reasonable efforts will be made to try to settle claims without the need to proceed to court. Occasionally, insurance adjusters will become far more reasonable in settlement negotiations just prior to trial, after they have received a report from their Counsel summarizing the case and their prospects for success or failure in the trial process.
The foregoing information is not meant to be exhaustive or in any way to replace direct contact between the attorney and the client. The information is meant to instruct the client from the outset of the Claimant’s claim on some of the issues that typically arise in personal injury cases and how such key factors are handled and addressed.
If you have any questions about these or any other topics, please contact me as soon as possible.
The material presented on the website of the Law Offices of Byron L. Taylor is intended for information purposes only. It is not intended as professional advice and should not be construed as such.